Zheng (Migration)

[2021] AATA 563

Zheng (Migration) [2021] AATA 563 (27 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ziyao Zheng

CASE NUMBER:  2018324

HOME AFFAIRS REFERENCE(S):          CLF2020/1570

MEMBER:Russell Matheson

DATE:27 January 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

·Regulation1.20KB.

Statement made on 27 January 2021 at 11:38am

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – approved sponsorship – sponsorship limitation – evidence of charge or conviction – police check – ‘Certificate of No Criminal Record’ issued by a local police station in China – ‘Notary Certificates of No Criminal Convictions’ issued by the Public Notary Office – AFP ‘Partial Disclosure’ National Police Check – AFP ‘Complete Disclosure’ National Police Check – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), r 1.20KB; Schedule 2, cls 802.215, 802.226

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 December 2020 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 15 January 2020. At the time of application, the Child (Residence) (Class BT) visa contained Subclass 802 (Child) and Subclass 837 (Orphan Relative). In this case, claims have only been made in respect of Subclass 802 (Child).

3. The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (the Regulations). As there is no letter of support from a State or Territory government welfare authority (cl.802.216, 802.226A), the criteria to be met in this case include cl.802.226 because the sponsorship in cl.802.215 had not been approved.

4. The applicant seeks review of the delegate’s decision.

5. No hearing was held in this case as the Tribunal was able to make a favourable determination on the materials before it in accordance with s.360(2)(a) of the Act.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. In the present case the visa application is not supported by a letter of support from a State or Territory government welfare authority and therefore the applicant does not meet cl.802.215(a) and must meet the requirements in cl.802.215(b). Clause 802.215(b) requires that, at the time of application, the applicant is sponsored by a person who has turned 18, is an Australian citizen, permanent visa holder or an eligible New Zealand citizen. The sponsor must be either the person for whom the applicant is their dependent child, or a cohabiting spouse or de facto partner of that person.  At the time of decision, this sponsorship must have been approved and still be in force: cl.802.226.

8. Regulation 1.20KB limits the Minister’s discretion to approve sponsorships. Regulation 1.20KB applies if the primary or secondary applicant is under 18 at the time of application.

9. 1.20KB applies if the primary or secondary applicant is under 18 at the time of application.

10. Sub-regulations 1.20KB (11) and (12) say:

    Evidence of charge or conviction

    (11)      To determine whether a sponsor, or the spouse or de facto partner of a sponsor, has been charged with, or convicted of, a registrable offence, the Minister may request the sponsor, or the spouse or de facto partner of the sponsor, to provide a police check from:

    (a)      a jurisdiction in Australia specified in the request; or

    (b)      a country, specified in the request, in which the sponsor or the spouse or de facto partner has lived for a period, or a total period, of at least 12 months.

    (12)     In addition to other reasons set out in this regulation for refusing to approve a sponsorship, the Minister may refuse to approve the sponsorship of all applicants for a visa if:

    (a)      the Minister has requested a police check for the sponsor or the sponsor’s spouse or de facto partner; and

    (b)      the sponsor or the sponsor’s spouse or de facto partner does not provide the police check within a reasonable time.

    Application details

11. The application for a Child (Subclass 802) visa was lodged on 15 January 2020.

12. In the present case the application for the visa included the applicant’s passport, which stated that his date of birth is 24 August 2019. This information confirmed that the applicant is under 18 years of age. Accordingly, the applicant was under 18 years of age at the time of application.

13. The applicant is sponsored by his mother, Ning ZHU. Departmental records show that the sponsor has spent more than 12 months in Australia, and more than 12 months outside of Australia, in the last 10 years.

14. In response to question 34 of the Form 40CH - Sponsorship for a child to migrate to Australia, the sponsor advised that she had lived in the following countries for a cumulative period of 12 months or more, over the last 10 years:

    ·Australia.

15. At question 37 of the Form 40CH, the sponsor advised she is in a partner relationship with Yuqi Zheng (applicant’s father). Departmental records show that the sponsor’s spouse has spent more than 12 months in Australia, and more than 12 months outside of Australia, in the last 10 years.

16. In response to question 52 of the Form 40CH, the sponsor advised that her spouse had lived in the following countries for a cumulative period of 12 months or more, over the last 10 years:

    ·Australia.

17. On 03 July 2020, the Department wrote to the sponsor and sponsor’s spouse via their nominated e-mail addresses as provided in the Form 40CH, and requested the following documents to be provided within 28 days (the prescribed period):

    ·An Australian Federal Police (AFP) ‘Complete Disclosure’ National Police Check issued by the AFP for both parents; and

    ·Police clearance from each country where both parents have lived for a total of 12 months or more in the last 10 years (calculated accumulatively)

18. On 14 July 2020, the Department received:

    ·    An AFP ‘Partial Disclosure’ National Police Check for the sponsor issued under the name Ning Zhu, on 6 July 2020.

19. On 17 July 2020, the Department received:

    ·    An AFP ‘Partial Disclosure’ National Police Check for the sponsor’s spouse issued under the name Yuqi Zheng, on 27 August 2020.

20. On 22 September the Department received the following documents:

    ·    ‘Certificate of No Criminal Record’ issued by a local police station in China for the sponsor under the name Ning Zhu, on 31 August 2020;

    ·    Certificate of No Criminal Record’ issued by a local police station in China for the sponsor’s spouse under the name of Yuqi Zheng, on 17 September 2020;

    ·    Repeat submission of an AFP ‘Partial Disclosure’ National Police Check for the sponsor’s spouse.

21. The Department wrote to the sponsor and sponsor’s spouse on 25 September 2020 and advised that the local police certificates from China were not acceptable. The Department requested they obtain the correct documents: ‘Notary Certificates of No Criminal Convictions’ issued by the Public Notary Office. The sponsor’s spouse was also advised that he needed AFP ‘Complete Disclosure’ National Police Check, and not just a ‘Partial Disclosure’.

22. On 19 October 2020, the Department asked the sponsor for an update on the police certificates from China. That same day, the Department received:

    • ‘Notary Certificate of No Criminal Convictions’ issued by a Notary Public Office in China for the sponsor under the name Ning ZHU, on 29 September 2020.

23. On 10 November 2020, the Department again requested the following documents to be provided within 28 days (the prescribed period):

    ·‘Notary Certificate of No Criminal Convictions’ issued by a Notary Public Office in China for the sponsor’s spouse; and

    ·An AFP ‘Complete Disclosure’ National Police Check for the sponsor’s spouse.

24. That same date the Department received:

    ·    ‘Notary Certificate of No Criminal convictions’ issued by a Notary Public Office in China for the sponsor’s spouse under the name Yuqi Zheng, 0n 28 October 2020; and

    ·    Repeat submissions of An AFP ‘Partial Disclosure’ National Police Check for the sponsor’s spouse, an AFP “Complete Disclosure’ National Police Check for the sponsor, and the Chinese ‘Notary Certificate of No criminal Convictions’ for the sponsor.

25. At the time of the delegates decision on 10 December 2020, the AFP ‘Complete Disclosure’ National Police Check for the sponsor’s spouse, Yuqi Zheng, had not been received by the Department.

26. An AFP National Police Certificate dated 14 December 2020 for the sponsor’s spouse has now been provided. The certificate states that there are no disclosable court outcomes recorded against the sponsor’s spouse in the records of the AFP and police in all Australian states and Territories.

27. Accordingly, the requirements in r.1.20KB are met.

28. Given the above findings, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

29. The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

    ·            Regulation 1.20KB.

    Russell Matheson
    Member